The purpose of this article is to present an overview of the recent measures adopted by the Brazilian Government which deal with the financial and capital markets and deserve to be highlighted to those individuals and legal entities interested in investing in Brazil.
I. Brazilian Finance Programs For The 2014 World Cup
The Brazilian Development Bank (Banco Nacional de Desenvolvimento Econômico e Social – BNDES) has designed two specific programs to foster environmentally and economically sustainable investments in order to prepare Brazil for the 2014 World Cup, namely: (i) the Arena Program (ProCopa Arenas), whereby BNDES will finance the construction and reform of sports arenas (stadiums) that will host Cup matches1; and (ii) the Tourism Program (ProCopa Turismo), which is intended to prepare Brazilian hotels for increased demands caused by the Cup, improving the capacity and the quality of accommodation offered to Brazilian and foreign tourists expected to attend the games and inducing the hotels´ environmental commitment by giving better conditions to those projects which take into account concerns for energy efficiency and environmental sustainability. The main features of both programs are outlined below.
The ProCopa Arenas has a R$ 4.8 billion budget for construction and reform of the venues expected to stage the World Cup games and for investments related to the urbanization of its surroundings. This program will finance up to 75% of the total cost of projects to reform or construct competition venues, limited to R$ 400 million (whichever is the lowest) per project. The projects should cover improvements in the surroundings, promoting accessibility and integration with urban spaces. For direct operations, the cost will be the Long-Term Interest Rate (Taxa de Juros de Longo Prazo – TJLP), which currently is 6% per annum, plus the BNDES spread of 0.9% per annum and a risk spread. On indirect financing, a financial intermediation rate of 0.5% is also levied. The repayment deadline will be up to 15 years, including up to a 3-year grace period.
In order to submit requests for the BNDES' analysis, bidders are required to: (a) seek the approval of Fédération Internationale de Football Association (FIFA) for the basic design; (ii) submit a detailed budget of expected investments; and (iii) submit an economic and financial feasibility study of the stadium, covering, mainly, its long-term financial sustainability. The projects should also be approved by an environmental quality certification entity that is internationally recognized and/or accredited by the Brazilian System of Metrology, Standards and Industrial Quality (Sistema Nacional de Metrologia, Normatização e Qualidade Industrial – SINMETRO). The contracting period for these operations is open until December 31, 2011.
The ProCopa Turismo will assign up to R$ 1 billion to the construction, reform, expansion and modernization of hotels. For the first time, maximum repayment deadlines for this sector may reach 12 years to modernize existing units and up to 18 years to build new units. Energy efficiency and/or sustainable construction projects certified by entities accredited by the Brazilian Institute of Metrology, Standards and Industrial Quality (Instituto Nacional de Metrologia, Normatização e Qualidade Industrial – INMETRO) may have the terms of their loans extended. If energy efficiency certification is presented, the reform, modernization and expansion projects may have their terms of loan extended to 10 years. For the construction of new units, this term of loan may reach 15 years.
In order to obtain the maximum term of loan expansion (12 and 18 years, respectively), bidders should submit sustainable construction certification which, besides energy efficiency, incorporates other requirements, such as rationalization of water and waste management. In direct operations, the applicable interest rate varies from 6.9% (micro, small and medium-sized companies) and up to 8.8% (large-sized companies), plus a risk spread. In order to apply for the funds, bidders should submit their applications by December 31, 2012.
The ProCopa Turismo will also allow direct operations from R$ 3 million. Operations of up to R$ 10 million are usually performed through accredited financing institutions. For large companies, the BNDES' maximum participation will be limited to 80% of the total investments. For micro, small and medium-sized companies, however, such percentage may reach 100%.
II. Foreign Exchange Non-Deliverable Forward Contracts In Brazil
As of January 18, 2010, the Brazilian Securities, Commodities and Futures Exchange (BM&FBOVESPA S.A. – Bolsa de Valores, Mercadorias e Futuros - BM&FBOVESPA) has authorized the registration of U.S. Dollar, Euro, Japanese Yen, and cross-rate non-deliverable forward contracts in its Over-The-Counter (OTC) market.
Initially, only foreign exchange transactions established by the Central Bank of Brazil (Banco Central do Brasil – Bacen) can be registered. As of March 1, 2010, BM&FBOVESPA will also authorize the registration of transactions with exchange rates calculated by the following information sources: U.S. Dollar/Euro parity exchange rate calculated and published by the European Central Bank; U.S Dollar/Euro exchange rate fixed by WMR/Reuters; Japanese Yen/U.S. Dollar parity exchange rate calculated and published by the Central Bank of Japan; and Japanese Yen/U.S. Dollar exchange rate fixed by WMR/Reuters.
The contract's expiration date, quotation, as well as size are to be freely agreed upon by the parties, subject to the limits established by BM&FBOVESPA. The contract will be traded in foreign currency, when the underlying exchange rate selected by the parties is the exchange rate of the Brazilian currency (Real - BRL) per foreign currency2. It will be traded in U.S. Dollars, when the underlying exchange rate selected by the parties is the exchange rate of foreign currency per U.S. Dollar, or the exchange rate of U.S. Dollars per foreign currency (Euro or Japanese Yen).
The contracts can be registered with or without the guarantee fee3. In the first case, collateral shall be required from all customers holding open positions and its amount will be updated daily, in accordance with the margin calculation criteria for the Forward Exchange Rate Contracts. For contracts registered without the guarantee feature, BM&FBOVESPA's responsibility shall be limited to contract registration, position monitoring, and cash settlement reporting.
Pursuant to the form of Forward Exchange Rate Contract of BM&FBOVESPA, should the calculation institution not disclose the applicable exchange rate (PTAX rate) corresponding to the first day preceding the expiration date, BM&FBOVESPA may at its own discretion: (a) postpone the contract settlement up until an official disclosure by the calculation institution; or (b) cash settle the contract at an arbitrated value. In either case, the settlement value may also be indexed by an opportunity cost arbitrated by BM&FBOVESPA from the expiration date to the effective cash settlement date. Furthermore, should the institution that calculates and/or discloses the exchange rate to be used in the calculation of the settlement value suspend its disclosure, thereby preventing the calculation of that rate, or in the case of force majeure situations that hinder the free functioning of the market, BM&FBOVESPA shall delist the contract and cash settle open positions in the contract at a value arbitrated at its own discretion. In these situations, BM&FBOVESPA shall provide the parties with a time frame to allow them to voluntarily and mutually settle the contract.
The parties may agree to an early settlement of their contract, that is, before the expiration date, from the first business day subsequent to the trade date, or the minimum term determined by BM&FBOVESPA, to the first business day preceding the expiration date. To this end they must report: (i) the contract number and (ii) the percentage of the contract to be early settled, expressed as a percentage of the contract's total amount of currencies, subject to the contract balance. Should the parties not define this percentage, the early settlement shall be carried out on the total contract balance. With respect to the settlement value, the proceeds from the early settlement, which are subject to the limits established by BM&FBOVESPA, shall be cash settled on the subsequent business day. When the trade is registered without the guarantee feature, cash settlement shall be made directly between the parties on the subsequent business day, or on the early settlement date, if this has been mutually agreed upon between the parties.
III. The Convergence With The International Financial Reporting Standards In Brazil
On January 28, 2010, BM&BOVESPA announced that the International Accounting Standards Board (IASB)4, the Brazilian Federal Council of Accounting (Conselho Federal de Contabilidade - CFC)5 and the Brazilian Accounting Pronouncements Committee (Comitê de Pronunciamentos Contábeis - CPC)6 signed a Memorandum of Understanding, which represents an important step towards the inclusion of Brazil in the international forum on the establishment and adoption of a set of accounting standards known as International Financial Reporting Standards (IFRS). Since only few countries have signed such a memorandum with the IASB, the creation of this partnership evidences Brazil's commitment and leadership on global regulatory issues.
The objective of the Memorandum of Understanding is to promote the convergence with IFRS in Brazil and to encourage Brazilian companies to play a greater role in standard-setting discussions. The Memorandum suggests, for example, that Brazil will uphold its commitment to accelerate the pace of convergence with IFRS all over the country, including small and medium-sized companies. For listed companies, complying with international financial reporting standards helps to improve the quality of financial reporting, thus allowing investors to enhance their decision-making and companies to reduce their cost of capital.
The signing of the Memorandum of Understanding took place in the same year as the deadline set by Brazilian regulators for all companies and financial institutions to follow IFRS. In March 2006 Bacen decided that financial intermediaries under its supervision must regularly publish consolidated financial statements in full compliance with IFRSs as from December 2010. The Brazilian Securities and Exchange Commission (Comissão de Valores Mobiliários - CVM) and the Brazilian Insurance Supervisor (Superintendência de Seguros Privados - SUSEP) issued similar rulings in 2007 aimed at companies that they regulate and supervise. At the end of 2007 the Brazilian Congress passed Law No. 11.638, of December 28, 2007, amending the Brazilian Corporation Law (Law No. 6.404, of December 15, 1976), requiring all listed companies, as well as all for-profit "large enterprises" (sociedades de grande porte), organised under any of the forms permitted by Brazilian law, to comply with IFRS.
IV. Brazil Agrees To Buy Up To US$ 10 Billion Of Notes Issued By The IMF
On January 22, 2010, the Brazilian Minister of Finance, Guido Mantega, the President of Bacen, Henrique Meirelles, and the Director-General of the International Monetary Fund (IMF), Dominique Strauss-Kahn, signed an agreement (Acordo de Compra de Notas – ACN) whereby Brazil will contribute to increase IMF´s capacity of granting loans of up to US$ 10 billion.
According to the ACN, within a two year period, Brazil is entitled to purchase certain notes (the "Notes") to be issued by the IMF. The purchase of the Notes will be made by Bacen and will involve the acquisition of assets issued by the IMF, which will be immediately converted into liquid currencies if necessary. The Notes will be expressed in Special Withdrawal Rights (Direitos Especiais de Saque – DES). The operation will change and diversify the profile of the country´s foreign reserves.
The maturity of the Notes will occur three months after their issuance and this initial term may be automatically renewed for additional periods of three months, unless the ACN is denounced by the IMF before any such renewal. The maximum term of the agreement is five years. The Notes will yield quarterly interests based on the short-term average interest rate of the United States, the Euro Zone, Japan and United Kingdom.
On January 28, 2010, the Brazilian Monetary Council (Conselho Monetário Nacional – CMN) issued CMN Resolution No. 3.833. By means of this resolution, as from March 15, 2010 any hedge transactions made by Brazilian companies in the international market with financial institutions abroad or at foreign exchanges must be compulsorily registered in Brazil in a system administered by entities of registry and financial settlement of assets authorized by Bacen or by CVM7. This registration must be effected through a financial institution or any other entity duly authorized to operate in Brazil by Bacen and must comprise the underlying assets, the involved amounts and currencies, terms, counterparties, form of settlement and adopted parameters, such as limits, multipliers and events of accelerated maturity. The proof of registry and the available documents regarding the transaction must be kept by such financial institution or entity at the disposal of Bacen for a period of five years. This is another important prudential measure adopted by the Brazilian authorities to monitor and control the risks of all derivatives transactions entered into by Brazilian companies.
VI. Development Agencies And Development Banks
CMN Resolution No. 3.834, of January 28, 2010, authorizes: (i) development agencies (agências de fomento)8 to acquire units of investment funds whose portfolios are formed exclusively by public federal instruments (provided that this requirement has been expressly contemplated in the funds´ regulations); and (ii) development agencies and development banks (bancos de desenvolvimento)9 to pay in units of investment funds with the participation of the Union (the Federation), incorporated with the specific purpose of guaranteeing credit risk transactions having as beneficiaries micro, small and medium size companies10 and rural producers (farmers) and their cooperatives11.
VII. Electric Power Sector
Last but not least, CMN Resolution No. 3.835, also issued on January 28, 2010, clarified that the restriction which currently prohibits12 the Brazilian financial institutions and other entities duly authorized to operate by Bacen to effect any transaction whatsoever aiming to transfer at any title the direct or indirect liability for the payment of any debt to bodies or entities of the public sector, does not apply to the Brazilian electric power sector. Therefore, as a result of CMN Resolution 3.835, Brazilian government-controlled entities in the electric power sector at the federal, state, municipal and district level (i.e. electric power companies controlled by the Union, the States, the Municipalities or Federal District) can grant guarantees to those special purpose companies (sociedade de propósito específico – SPE) incorporated by any such entities. The following conditions must be duly complied with: (i) for each project there is a separate SPE and the SPE is created exclusively for making investments linked to the Electric Power Generation and Transmission Program (Programa de Geração e Transmissão de Energia Elétrica), under the Growth Acceleration Program (Programa de Aceleração do Crescimento - PAC); and (ii) each guarantee cannot exceed the percentage of the equity participation of the guarantor in the SPE.
The authorized aggregate amount for the granting of all these guarantees is limited to R$ 11 billion13. It is expected that these guarantees will be available for 40 projects that totalize R$ 53 billion investments which have the participation of companies of the Eletrobrás Group, such as the hydroelectric plants of Jirau and Santo Antonio, on the Madeira River, in the State of Rondonia, and of Belo Monte, on the Xingu River, in the State of Pará14.
1. BNDES´ goal is for the World Cup to leave forthcoming events with the facilities produced according to the best practices of energy conservation and use of natural resources which, after the Cup, will become part of the cities and appropriated by the entire population.
2. The exchange rate of Brazilian currency (BRL) per U.S. Dollar for cash delivery, traded in the foreign exchange market, pursuant to the provisions of Resolution No. 3568/2008 of the National Monetary Council (Conselho Monetário Nacional - CMN), calculated and published by Bacen through SISBACEN, transaction PTAX800, option "5," closing offered quotation, for settlement in two days, utilizing the maximum of six decimal places, also published by Bacen with the denomination "closing PTAX," pursuant to Communication 10742, of February 17, 2003.
3. For the contracts registered with the guarantee feature, collateral shall be required from all customers holding open positions and its amount shall be updated daily, in accordance with the margin calculation criteria for the Non-Deliverable Foreign Exchange Forward Contract. For the contracts registered without the guarantee feature, BM&FBOVESPA's responsibility shall be limited to contract registration, position monitoring, and cash settlement value reporting. Therefore, BM&FBOVESPA is not liable for the settlement of such transactions, which, in turn, are not covered by the funds or other safeguard mechanisms.
4. The IASB was established in 2001. It is the standard-setting body of the International Accounting Standards Committee (IASC) Foundation, an independent private sector, not-for-profit organisation. The IASB is committed to developing a single set of global accounting standards that provide transparent and comparable information in general purpose financial statements. In pursuit of this objective, the IASB conducts extensive public consultations and seeks the co-operation of international and national bodies around the world.
5. The CFC was created in 1946 and is a quasi-governmental entity subject to the discipline of state bodies. Its objective is to promote the development of the accounting profession, emphasising its ethical aspects, service quality, and engaging in the registration and supervision of its members and accounting entities; its actions being ultimately directed towards the protection of society.
6. The CPC was created in 2005 and issues technical pronouncements, guidance, and interpretations, which must be endorsed by the applicable governmental entities and by the CFC in order to have legal effects. The CPC seeks the convergence of Brazilian accounting standards towards international standards. It was founded by the following entities: the Brazilian Association of Listed Companies (Associação Brasileira das Companhias Abertas - ABRASCA); the National Board of the Brazilian Association of Capital Market Analysts and Investment Professionals (Associação dos Analistas e Profissionais de Investimento do Mercado de Capitais - APIMEC Nacional); BM&FBOVESPA; the CFC; the Foundation Institute for Research in Accounting, Finance and Actuarial Sciences (Fundação Instituto de Pesquisas Contábeis, Atuariais e Financeiras - FIPECAFI); and the Institute of Independent Auditors of Brazil (Instituto dos Auditores Independentes do Brasil - IBRACON). The CPC is independent of its founding entities and its deliberations require a minimum of 2/3 of votes in favour of any proposal.
7. The most important entity authorized to effect this registration is CETIP – OTC Clearing House (CETIP S.A.- Balcão Organizado de Ativos e Derivativos), which operates the leading marketplace for private fixed income securities and over-the counter (OTC) derivatives in Latin America.
8. The incorporation and operation of development agencies is governed by CMN Resolution No. 2.828, of March 30, 2001, as amended. A development agency must be: (i) formed as a closely-held corporation (sociedade anônima de capital fechado), and (ii) under the share control of a Unit of the Federation (the States or the Federal District) where its headquarters are located. Furthermore, its corporate purpose is to finance fixed and working capital associated with projects in such Unit of the Federation.
9. The incorporation and operation of development banks is governed by the Regulations attached to CMN Resolution of November 3, 1976, as amended. A development bank is a non-federal public financial institution formed as a corporation (sociedade anônima) headquartered in the capital of the State of the Federation and share controlled by such State.
10. The company size classification adopted by the Brazilian Development Bank (Banco Nacional de Desenvolvimento Econômico e Social – BNDES) is applicable to industry, trade and services, according to BNDES Circular Letter No. 64/02, of October 14, 2002, and is as follows: (i) Micro Companies: annual operational gross revenues of up to R$ 1,200 thousand; (ii) Small Companies: annual operational gross revenues of more than R$ 1,200 thousand and less than or equal to R$ 10,500 thousand; (iii) Medium Companies: annual operational gross revenues of more than R$ 10,500 thousand and less than or equal to R$ 60 million that: (a) have carried out export operations in the 36 months prior to the presentation of the financing request; or that are manufacturers of inputs that are directly used in the production, assembly or packaging processes of goods earmarked for export, having supplied export companies in the 36 months prior to the presentation of the financing request; and (iv) Large Companies: annual operational gross revenues of more than R$ 60 million. Gross annual operating revenues are considered to be the revenues incurred during the calendar year with the sale of goods and services in one's own operations, the price of offered services and the result of others' operations, not including cancelled sales and unconditional granted discounts.
11. The creation of these investment funds is regulated by Law No. 12.087, of November 11, 2009, which authorizes the participation of the Union in funds to guarantee credit risk transactions for micro, small and medium size companies and for rural producers and their cooperatives.
12. Such prohibition is contained in item IV of article 7 of CMN Resolution No. 2.827, of March 30, 2001. Article 1 of CMN Resolution 3.835 included § 4 to article 7 to clarify this issue. This decision ratifies a federal decree enacted at the end of last year – Decree No. 7.058, of December 29, 2009, which regulated the matter but required a resolution from the CMN to become in full force and effect.
13. This limited is expressly contemplated in article 2, which added § 4 to article 7 of CMN Resolution 2.827.
14. In terms of energy production, Jirau will generate 3,300 megawatts (MW), Santo Antonio 3,150 MW and Belo Monte 11,000 MW.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.